THE STATE OF OREGON

                           HEARINGS DIVISION

Oregon Occupational Safety &                                    
  Health Division			)  Docket No: SH92086

	Plaintiff			)  CITATION NO: L626001792

		v.			)


Pursuant to notice, a hearing was convened and closed on
Tuesday, September 1, 1992, in Salem, Oregon before Referee
Patricia Nielsen. Oregon Occupational Safety & Health Division
(the Department) was present and was represented by Dee Carlson.
Employer, Pacific Power & Light, was represented by Terry Cox,
Senior Safety Administrator. Exhibits 1 through 8 were offered
and received into evidence. The hearing was recorded by Debbie
Meaghers of Business Support Services of Salem.


Whether the employer's failure to post one or more flaggers on
the road next to its mobile work site on December 2, 1991 was a
violation of OAR 437-34-20(1), subjecting it to a fine of $75.00

                     FINDINGS OF FACT

Safety Compliance Officer Bruce F. Lawson was patrolling his
area by truck on December 26, 1991, when he saw an orange sign
at the side of the road which said "Utility Work Ahead."
Continuing along the road he came to a mobile work site of
employer, Pacific Power & Light, consisting of a boom truck and
several crew members. The truck was parked approximately two
feet into the road along its length. The crew was working to
repair a damaged power line and restore power to local
customers. Mr. Lawson stopped to tell the foreman he needed a
flagger at the site because two-way traffic was being
constricted by the truck being parked in the roadway at the
repair site. The foreman placed a flagger on the roadway at that

Mr. Lawson cited the employer for a serious violation of OAR
437-3-420(1). The fine of $150.00 was reduced by 20 percent
because the employer immediately complied with the Safety
Compliance Officer's suggestion, and by an additional 30 percent
because the employer is below the statewide average for
accidents in its industry. The fine for the citation was $75.00.
The employer requested a hearing.


The Department contends that the employer violated OAR
437-3-420(1), because the work zone traffic controls did not
conform to the ANSI D6.le  1989 Standard (MUTCD) 6F7. Rule 6F7

Flagger Control

Where the onelane section is short enough so that each end is
visible from the other end, traffic may be controlled by means
of a flagger at each end of the section. One of the two should
be designated as the chief flagger for purposes of coordinating
movement. They should be able to communicate with each other
verbally or by means of signals. These signals should not be
such as to be mistaken for flagging signals.

Where the one-lane section is not visible from the other end,
the flaggers may maintain contact by means of radio or field
telephones. So that a flagger may know when to allow traffic to
proceed into the section, the last vehicle from the opposite
direction can be identified by description or license. (Ex. 8,
rule 6F7).

The reason for the citation was that the truck was partially
blocking the traffic pattern, and no flagger was there to guide
motorists through the work area. (Ex. lA, p. 6)

The Safety Compliance Officer was concerned because of the high
speed limit on the road (55 mph), the narrowness of the roadway,
and the fact that only one sign was set along the roadway around
a bend of the road behind the truck. In his opinion, if one car
hit the truck at high speed, there was a strong possibility of
serious injury or death.

The employer admitted that the proposed penalty was reasonable
if the violation were established. However, it argued that there
was no violation, because the rule cited does not govern the
present facts.

The employer asked the Referee to consider two additional rules
from the ANSI D6.le  1989 Standard (MUTCD). Rule 6A5(3) provides
in part:

Motorists should be guided in a clear and positive manner while
approaching and traversing construction, maintenance and utility
work areas and incident sites.

a. Adequate warning, delineation and channelization by means of
proper pavement marking, signing, and use of other devices which
are effective under varying conditions of light and weather
should be provided to assure the motorist of positive guidance
in advance of and through the work area.

* *

c. Flagging procedures, when used, can provide positive guidance
to the motorist traversing the work area. Flagging should only
be employed when required to control traffic or when all other
methods are inadequate to warn and direct drivers. (Ex. 8).

The employer set a sign warning of its work area ahead on the
side of the road, around a bend, out of sight of the parked
truck. (Ex. 5, p. 1) The weather was clear and nice with good
visibility, and traffic was very light during the inspection.
(Ex. 4, p. 1) The time was morning, with adequate daylight. (See
photos, Ex. 5)

Rule 6F6 addresses the issue of one-way traffic control:

Where traffic in both directions must, for a limited distance,
use a single lane, provision should be made for alternate
one-way movement to pass traffic through the constricted
section. At a 'spot' obstruction, such as an isolated pavement
patch, the movement may be self regulating. * * * (Ex. 8).

The employer contends that its truck constituted a "spot"
obstruction, and therefore no flagger was required because
traffic movement could be self regulating. I agree. The work
site was the length of one medium-sized truck. The truck was
parked in the roadway for only about 30 minutes. The truck
overlapped the roadway by approximately two feet. The pavement
was approximately 22 feet wide at that point. (Ex. 4, p. 3)
There was an orange warning sign on the side of the roadway, out
of sight of the rear of the truck around a bend in the road. The
inspector's photographs show there was clear visibility of the
truck from the roadway in front and behind the truck for a
distance long enough to allow any traffic to regulate itself
while passing the boom truck. (Ex. 5) A vehicle approaching from
the front of the truck would be able to see that the truck was
not in its lane, and could also see an oncoming vehicle
approaching the obstruction from the opposite direction. A
vehicle approaching from the rear of the truck could see that
the truck was parked two feet into its lane, but could also see
the road ahead of the truck for oncoming traffic. There is a
double yellow line along the center of the roadway along that
area, to prevent passing. Therefore, it is unlikely that more
than one vehicle would be approaching the parked truck from each
direction at a time.

I find persuasive the employer's argument that under the
circumstances its repair truck was a "spot" obstruction, around
which traffic movement could be self regulating, and that no
flaqqer was necessary at its work site.

The Department contends that the fact that employer's foreman
agreed that a flagger was needed, and that he thereafter set a
flagger in the roadway, is evidence that employer knew a flagger
was needed, and by its action admitted the violation. I
disagree. Considering the power of the Safety Compliance Officer
to issue citations which carry potentially large monetary
penalties, I find it reasonable that the employer's foreman
would hurry to comply with the Officer's suggestions no matter
what his personal opinion. The officer himself agreed that he
had reduced the fine by 20 percent because the employer
immediately complied with his request to put a flagger out. (Ex.
3, p. 1)

Considering the record as a whole, I conclude that the
Department did not establish, by a preponderance of the
evidence, a violation of OAR 437-3-420(1) on the part of
employer, Pacific Power & Light.


IT IS ORDERED that the Department's Citation No. L626001792,
dated December 26, 1991, be dismissed.

NOTICE TO ALL PARTIES: You are entitled to judicial review of
this Order. Proceedings for review are to be instituted by
filing a petition in the Court of Appeals, Supreme Court
Building, Salem, Oregon 97310, within 60 days following the date
this Order is entered and served as shown hereon. The procedure
for such judicial review is prescribed by ORS 183.480 and ORS

	ENTERED at Salem, Oregon, on SEPT. 18, 1992 


				By Patricia Nielsen